H*4571 Session 109 (1991-1992)
H*4571(Rat #0644, Act #0507 of 1992) General Bill, By Wilkins, Alexander,
M.O. Alexander, J.J. Bailey, R.A. Barber, D.M. Beasley, L.E. Bennett, Boan,
H. Brown, J. Brown, Cato, H.H. Clyborne, Cooper, R.S. Corning, Fair, T.L. Farr,
R.C. Fulmer, L.E. Gentry, J.L. Harris, P.B. Harris, Harrison, B.H. Harwell,
Haskins, J.H. Hodges, T.E. Huff, M.F. Jaskwhich, Jennings, Koon, Lanford,
Martin, D.E. Martin, L.M. Martin, A.C. McGinnis, Phillips, Quinn, Riser, Scott,
Sharpe, J.S. Shissias, R. Smith, C.L. Sturkie, J.W. Tucker, Vaughn,
D.C. Waldrop, C.C. Wells, J.B. Williams, S.S. Wofford, D.A. Wright and
Young-Brickell
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
1-23-115 so as to provide that on request an agency must prepare an assessment
report on regulations having a substantial economic impact and to provide
contents of reports; to amend Section 1-23-10 relating to definitions in the
Administrative Procedures Act, so as to include "division" and "substantial
economic impact"; to amend Section 1-23-110, as amended, relating to
procedures for promulgating regulations so as to clarify these procedures and
include notice and submission of assessment reports; to amend Section
1-23-120, as amended, relating to procedures for General Assembly review of
regulations so as to include assessment reports, if prepared, with regulations
submitted to the General Assembly; to amend Section 1-23-130, relating to
emergency regulations so as to require assessment reports on these regulations
under certain conditions; to provide for the prospective application of this
Act.-amended title
03/18/92 House Introduced and read first time HJ-18
03/18/92 House Referred to Committee on Judiciary HJ-19
03/25/92 House Committee report: Favorable with amendment
Judiciary HJ-4
04/01/92 House Debate adjourned until Thursday, April 2, 1992 HJ-3
04/02/92 House Debate adjourned until Tuesday, April 7, 1992 HJ-25
04/07/92 House Objection by Rep. Cromer HJ-34
04/07/92 House Debate adjourned until Wednesday, April 8, 1992 HJ-34
04/08/92 House Debate adjourned until Wednesday, April 22, 1992 HJ-16
04/22/92 House Objection by Rep. Baxley HJ-13
04/22/92 House Objection by Rep. Whipper, Cobb-Hunter, White,
Vaughn, Clyborne, HJ-28
04/22/92 House Objection by Rep. Baker, Cato, Haskins, Kempe &
D. Elliott HJ-28
04/23/92 House Objection withdrawn by Rep. Whipper & Cobb-Hunter HJ-27
04/28/92 House Objection withdrawn by Rep. Baxley, Cato,
Clyborne, D. Elliott, Haskins & Vaughn HJ-135
04/29/92 House Objection withdrawn by Rep. Baker & White HJ-322
05/06/92 House Amended HJ-65
05/06/92 House Read second time HJ-76
05/07/92 House Read third time and sent to Senate HJ-63
05/12/92 Senate Introduced, read first time, placed on calendar
without reference SJ-12
05/20/92 Senate Special order SJ-25
06/02/92 Senate Amended SJ-30
06/02/92 Senate Read second time SJ-33
06/02/92 Senate Ordered to third reading with notice of
amendments SJ-33
06/03/92 Senate Debate adjourned SJ-105
06/03/92 Senate Amended SJ-51
06/03/92 Senate Read third time and returned to House with
amendments SJ-53
06/04/92 House Concurred in Senate amendment and enrolled HJ-4
06/04/92 Ratified R 644
07/01/92 Signed By Governor
07/01/92 Effective date 01/01/93
07/01/92 Act No. 507
07/01/92 See act for exception to or explanation of
effective date
07/15/92 Copies available
(A507, R644, H4571)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING SECTION 1-23-115 SO AS
TO PROVIDE THAT ON REQUEST AN AGENCY MUST
PREPARE AN ASSESSMENT REPORT ON REGULATIONS
HAVING A SUBSTANTIAL ECONOMIC IMPACT AND TO
PROVIDE CONTENTS OF REPORTS; TO AMEND SECTION
1-23-10 RELATING TO DEFINITIONS IN THE
ADMINISTRATIVE PROCEDURES ACT, SO AS TO
INCLUDE "DIVISION" AND
"SUBSTANTIAL ECONOMIC IMPACT"; TO
AMEND SECTION 1-23-110, AS AMENDED, RELATING TO
PROCEDURES FOR PROMULGATING REGULATIONS SO
AS TO CLARIFY THESE PROCEDURES AND INCLUDE
NOTICE AND SUBMISSION OF ASSESSMENT REPORTS;
TO AMEND SECTION 1-23-120, AS AMENDED, RELATING
TO PROCEDURES FOR GENERAL ASSEMBLY REVIEW OF
REGULATIONS SO AS TO INCLUDE ASSESSMENT
REPORTS, IF PREPARED, WITH REGULATIONS
SUBMITTED TO THE GENERAL ASSEMBLY; TO AMEND
SECTION 1-23-130, RELATING TO EMERGENCY
REGULATIONS SO AS TO REQUIRE ASSESSMENT
REPORTS ON THESE REGULATIONS UNDER CERTAIN
CONDITIONS; TO PROVIDE FOR THE PROSPECTIVE
APPLICATION OF THIS ACT.
Be it enacted by the General Assembly of the State of South
Carolina:
Assessment reports
SECTION 1. The 1976 Code is amended by adding:
"Section 1-23-115. (A) Upon written request by two
members of the General Assembly, a regulation that has a
substantial economic impact must have an assessment report
prepared pursuant to this section and in accordance with the
procedures contained in this article.
(B) A state agency must submit to the State Budget and
Control Board, Division of Research and Statistical Services, a
preliminary assessment report on regulations which have a
substantial economic impact. Upon receiving this report the
division may require additional information from the
promulgating agency, other state agencies, or other sources. A
state agency shall cooperate and provide information to the
division on requests made pursuant to this section. The division
shall prepare and publish a final assessment report within sixty
days after the public hearing held pursuant to Section 1-23-110.
The division shall forward the final assessment report and a
summary of the final report to the promulgating agency.
(C) At a minimum, the preliminary assessment report required
by this section must disclose the effects of the proposed regulation
on the public health and environmental welfare of the community
and State and the effects of the economic activities arising out of
the proposed regulation. Both the preliminary and final reports
required by this section may include:
(1) a description of the regulation, the purpose of the
regulation, the legal authority for the regulation, and the plan for
implementing the regulation;
(2) a determination of the need for the regulation and the
expected benefit of the regulation;
(3) a determination of the costs and benefits associated with
the regulation and an explanation of why the regulation is
considered to be the most cost effective, efficient, and feasible
means for allocating public and private resources and for
achieving the stated purpose;
(4) the effect of the regulation on competition;
(5) the effect of the regulation on the cost of living and doing
business in the geographical area in which the regulation would
be implemented;
(6) the effect of the regulation on employment in the
geographical area in which the regulation would be
implemented;
(7) the source of revenue to be used for implementing and
enforcing the regulation;
(8) a conclusion on the short-term and long-term economic
impact upon all persons substantially affected by the regulation,
including an analysis containing a description of which persons
will bear the costs of the regulation and which persons will benefit
directly and indirectly from the regulation;
(9) the uncertainties associated with the estimation of
particular benefits and burdens and the difficulties involved in the
comparison of qualitatively and quantitatively dissimilar benefits
and burdens. A determination of the need for the regulation must
consider qualitative and quantitative benefits and burdens;
(10) the effect of the regulation on the environment and
public health;
(11) the detrimental effect on the environment and public
health if the regulation is not implemented.
An assessment report must not consider benefits or burdens on
out-of-state political bodies or businesses. The assessment of
benefits and burdens which cannot be precisely quantified may be
expressed in qualitative terms. This subsection must not be
interpreted to require numerically precise cost-benefit analysis.
At no time is an agency required to include items (4) through
(8) in a preliminary assessment report; however, these items may
be included in the final assessment report prepared by the
division.
(D) If information required to be included in the assessment
report materially changes at any time before the regulation is
approved or disapproved by the General Assembly, the agency
must submit the corrected information to the division which must
forward a revised assessment report to the Legislative Council for
submission to the committees to which the regulation was referred
during General Assembly review.
(E) An assessment report is not required on:
(1) regulations specifically exempt from General Assembly
review by Section 1-23-120; however, if any portion of a
regulation promulgated to maintain compliance with federal law is
more stringent than federal law, then that portion is not exempt
from this section;
(2) emergency regulations filed in accordance with Section
1-23-130; however, before an emergency regulation may be
refiled pursuant to Section 1-23-130, an assessment report must be
prepared in accordance with this section;
(3) regulations which control the hunting or taking of wildlife
including fish or setting times, methods, or conditions under
which wildlife may be taken, hunted, or caught by the public, or
opening public lands for hunting and fishing."
Definitions
SECTION 2. Section 1-23-10 of the 1976 Code is amended by
adding:
"(6) `Division' means the Division of Research and
Statistical Services in the State Budget and Control Board.
(7) `Substantial economic impact' means a financial impact
upon:
(a) commercial enterprises;
(b) retail businesses;
(c) service businesses;
(d) industry;
(e) consumers of a product or service; or
(f) taxpayers."
Regulation promulgation procedures
SECTION 3. Section 1-23-110 of the 1976 Code, as last amended
by Act 91 of 1989, is further amended to read:
"Section 1-23-110. (A) Before the promulgation,
amendment, or repeal of a regulation, an agency shall:
(1) give notice of a drafting period by publication of a notice
in the State Register. The notice must include the address to
which interested persons may submit written comments during the
initial drafting period before the regulations are submitted as
proposed;
(2) submit to the division, no later than the date the notice
required in item (3) is published in the State Register, a
preliminary assessment report prepared in accordance with
Section 1-23-115 on regulations having a substantial economic
impact;
(3) give notice of a public hearing at which the agency will
receive data, views, or arguments, orally and in writing, from
interested persons on proposed regulations by publication of a
notice in the State Register if requested by twenty-five persons, by
a governmental subdivision or agency, or by an association having
not less than twenty-five members. The notice must include:
(a) the address to which written comments must be sent
and the time period of not less than thirty days for submitting
these comments;
(b) the date, time, and place of the public hearing which
must not be held sooner than thirty days from the date the notice
is published in the State Register;
(c) either the text or a synopsis of the proposed
regulation;
(d) the statutory authority for its promulgation;
(e) a preliminary fiscal impact statement prepared by the
agency reflecting estimates of costs to be incurred by the State
and its political subdivisions in complying with the proposed
regulation. A preliminary fiscal impact statement is not required
for those regulations which are not subject to General Assembly
review under Section 1-23-120;
(f) a summary of the preliminary assessment report
submitted by the agency to the division and notice that copies of
the preliminary report are available from the agency. The agency
may charge a reasonable fee to cover the costs associated with this
distribution requirement. A regulation that does not require an
assessment report because it does not have a substantial economic
impact, must include a statement to that effect. A regulation
exempt from filing an assessment report pursuant to Section
1-23-115(E) must include an explanation of the exemption.
(B) Notices required by this section must be mailed by the
promulgating agency to all persons who have made timely
requests of the agency for advance notice of proposed
promulgation of regulations.
(C) The agency shall consider fully all written and oral
submissions respecting the proposed regulation.
(D) A proceeding to contest a regulation on the ground of
noncompliance with the procedural requirements of this section
must be commenced within one year from the effective date of the
regulation."
Procedures for General Assembly Review of
Regulations
SECTION 4. Section 1-23-120 of the 1976 Code, as last amended
by Act 91 of 1989, is further amended to read:
"Section 1-23-120. (A) All regulations except those
specifically exempted under this section must be submitted to the
General Assembly for review in accordance with this article, but
no regulation may be submitted to the General Assembly more
than one year after publication of the drafting notice initiating the
regulation pursuant to Section 1-23-110.
(B) To initiate the process of review, the agency shall file with
the President of the Senate and the Speaker of the House of
Representatives:
(1) a copy of the regulations promulgated;
(2) a request for review;
(3) a brief synopsis of the regulations submitted explaining
the content and any changes in existing regulations resulting from
the regulations;
(4) a copy of the final assessment report and the summary of
the final report prepared by the division pursuant to Section
1-23-115. A regulation that does not require an assessment report
because it does not have a substantial economic impact must
include a statement to that effect. A regulation exempt from filing
an assessment report pursuant to Section 1-23-115(E) must
include an explanation of the exemption;
(5) a copy of the fiscal impact statement prepared by the
agency as required in Section 1-23-110.
(C) Upon receipt of the request, the President and Speaker
reviewing the request shall submit it for consideration to the
standing committees of the Senate and House which are most
concerned with the function of the promulgating agency. A copy
of the regulation or a synopsis of it must be given to each member
of the committee. The committees to which regulations are
referred have one hundred twenty days from the date regulations
are submitted to the General Assembly to consider and take action
on these regulations. However, if a regulation is referred to a
committee and no action occurs in that committee on the
regulation within sixty calendar days of receipt of the regulation,
the regulation must be placed on the agenda of the full committee
beginning with the next scheduled full committee meeting.
(D) If a joint resolution to approve a regulation is not enacted
within one hundred twenty days after the regulation is submitted
to the General Assembly or if a joint resolution to disapprove a
regulation has not been introduced by a standing committee to
which the regulation was referred for review, the regulation is
effective upon publication in the State Register. Upon
introduction of the first joint resolution disapproving a regulation
by a standing committee to which the regulation was referred for
review, the one-hundred-twenty-day period for automatic
approval is tolled. A regulation may not be filed under the
emergency provisions of Section 1-23-130 if a joint resolution to
disapprove the regulation has been introduced by a standing
committee to which the regulation was referred. Upon a negative
vote by either the Senate or House of Representatives on the
resolution disapproving the regulation and the notification in
writing of the negative vote to the Speaker of the House of
Representatives and the President of the Senate by the clerk of the
house in which the negative vote occurred, the remainder of the
period begins to run. If the remainder of the period is less than
ninety days, additional days must be added to the remainder to
equal ninety days. The introduction of a joint resolution by the
committee of either house does not prevent the introduction of a
joint resolution by the committee of the other house to either
approve or disapprove the regulations concerned. A joint
resolution approving or disapproving a regulation must
include:
(1) the synopsis of the regulation as required by subsection
(B);
(2) the summary of the final assessment report prepared by
the division pursuant to Section 1-23-115 or, as required by
subsection (B), the statement or explanation that an assessment
report is not required or is exempt.
(E) The one-hundred-twenty-day period of review begins on
the date the regulation is filed with the President and Speaker.
Sine die adjournment of the General Assembly tolls the running of
the period of review, and the remainder of the period begins to run
upon the next convening of the General Assembly excluding
special sessions called by the Governor.
(F) Any member may introduce a joint resolution approving or
disapproving a regulation thirty days following the date the
regulations concerned are submitted to a standing committee for
review and no committee joint resolution approving or
disapproving the regulations has been introduced and the
regulations concerned have not been withdrawn by the
promulgating agency pursuant to Section 1-23-125, but the
introduction does not toll the one-hundred-twenty-day period of
automatic approval.
(G) General Assembly review is not required for regulations
promulgated:
(1) to maintain compliance with federal law including, but not
limited to, grant programs; however, the synopsis of the
regulation required to be submitted by subsection (B) must
include citations to federal law, if any, mandating the
promulgation of or changes in the regulation justifying this
exemption;
(2) by the state Board of Financial Institutions in order to
authorize state-chartered banks, state-chartered savings and loan
associations, and state-chartered credit unions to engage in
activities that are authorized pursuant to Section 34-1-110;
(3) by the South Carolina Tax Commission to adopt
regulations, revenue rulings, revenue procedures, and technical
advice memoranda of the Internal Revenue Service so as to
maintain conformity with the Internal Revenue Code of 1954;
(4) as emergency regulations under Section 1-23-130.
(H) For purposes of this section, only those calendar days
occurring during a session of the General Assembly, excluding
special sessions, are included in computing the days
elapsed."
Emergency Regulations
SECTION 5. Section 1-23-130 of the 1976 Code is amended to
read:
"Section 1-23-130. (A) If an agency finds that an
imminent peril to public health, safety, or welfare requires
immediate promulgation of an emergency regulation before
compliance with the procedures prescribed in this article or if a
natural resources related agency finds that abnormal or unusual
conditions, immediate need, or the state's best interest requires
immediate promulgation of emergency regulations to protect or
manage natural resources, the agency may file the regulation with
the Legislative Council and a statement of the situation requiring
immediate promulgation. The regulation becomes effective as of
the time of filing.
(B) An emergency regulation filed under this section which
has a substantial economic impact may not be refiled unless
accompanied by the summary of the final assessment report
prepared by the division pursuant to Section 1-23-115.
(C) If emergency regulations are either filed or expire while
the General Assembly is in session, the emergency regulations
remain in effect for ninety days only and may not be refiled; but if
emergency regulations are both filed and expire during a time
when the General Assembly is not in session they may be refiled
for an additional ninety days.
(D) Emergency regulations and the agency statement as to the
necessity of immediate promulgation must be published in the
next issue of the State Register following the date of filing. The
summary of the final assessment report required for refiling
emergency regulations pursuant to subsection (B) must also be
published in the next issue of the State Register.
(E) An emergency regulation promulgated pursuant to this
section may be permanently promulgated by complying with the
requirements of this article."
Prospective application
SECTION 6. The amendments to Article 1, Chapter 23, Title 1,
as contained in this act, apply to those regulations for which a
notice of drafting pursuant to Section 1-23-110 is filed subsequent
to this act's effective date.
Time effective
SECTION 7. This act takes effect six months after approval by
the Governor.
Approved the 1st day of July, 1992. |